On April 17, 2018, the Supreme Court issued Sessions v. Dimaya, and immigration case holding that a certain provision of federal law was so vague that it cannot be applied to determining the deportability of non-citizens. Headlines were screaming about how those rascally courts were immunizing violent criminals from deportation – even Justice Neil M. Gorsuch, who was supposed to be a “good guy” in the struggle to make American safe again. Of course what happened was nothing of the sort.
The provision is 18 USC § 16(b), the second definition of a “Crime of Violence.”
The statute states:
The term “crime of violence” means—
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
The Supreme Court held that defining a crime of violence as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense” is vague and thus cannot be fairly applied.
Ask the average person to name you a crime that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense and probably one of the first crimes he will come up with is drunk driving. Is not the reason there is so little tolerance of drunk drivers is that they could kill someone?
In 1998, the Board of Immigration Appeals addressed whether DUI is a crime of violence under 8 U.S.C. § 16(b), in a case, Matter of Magallanes, holding:
No one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it. Media reports of alcohol-related death and mutilation on the Nation’s roads are legion. The anecdotal is confirmed by the statistical. “Drunk drivers cause an annual death toll of over 25,000 and in the same time span cause nearly one million personal injuries and more than five billion dollars in property damage.  The federal courts also have addressed the potential for harm inherent in driving under the influence of drugs or alcohol.  As is articulated in these decisions, the act of driving while under the influence of drugs or alcohol clearly is an activity that has enormous potential to result in harm. We conclude that the respondent was convicted of an offense that is the type of crime that involves a substantial risk of harm to persons and property…. In support of this conclusion, we point to the incontrovertible evidence that drunk driving is an inherently reckless act, which exacts a high societal toll in the forms of death, injury, and property damage.  Thus, upon applying the 18 U.S.C. § 16(b) test … we find that the respondent was convicted of a “crime of violence…” within the meaning of the Act. See section 101 (a) (43) (F) of the Act.
The decision in Matter of Magallanes did not come out of thin air. Courts had been grappling with the application of the definition of a crime of violence because federal sentencing law called for enhanced sentences for crimes of violence, 18 U.S.C. § 924(c), and because a conviction of a crime of violence became a deportable offense eight years earlier, in 1990. Reaching back to a sentencing case, the BIA relied on United States v. Springfield, an involuntary manslaughter case, from 1987, which stated:
Involuntary manslaughter does, in the sense intended in the statute, carry with it the “risk” of physical force. We conclude that involuntary manslaughter, which “by its nature” involves the death of another person, is highly likely to be the result of violence.
In other words, a crime of violence is not one where the perpetrator intends to commit violence. Rather, it is a crime where violence could result. The BIA then applied this decision to its own involuntary manslaughter case, Matter of Alcantar, in 1994, writing:
Section 16(b) contemplates a generic category of offenses which typically present the risk of injury to a person or property irrespective of whether the risk develops or harm actually occurs. Offenses within the scope of section 16(b) have as a commonly shared characteristic the potential of resulting in harm. Once the court determines that the defendant has been convicted of a crime that usually involves a risk of harm, the inquiry ends; it does not matter whether that risk has matured into actual harm.
One can imagine where this is going. Starting with the statutory definition of a crime of violence at 18 U.S.C. § 16(b) – any offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense – courts went from involuntary manslaughter, where there was a dead body around, to cases where a person did something dangerous – like drunk driving – where there was not only no intent to hurt someone, but no one got hurt. It wouldn’t be long before courts would have to consider whether the potential for harm to another person or property was in the nature of the crime. The problem, is that, as any Jewish mother will tell you, every crime involves potential danger. Even something as mundane as jaywalking has the potential for the use of physical force. After all, jaywalking is a crime because it is supposed to prevent a highly dangerous action, crossing the street in the middle, in the middle, in the middle of the block.
The BIA, in 1999, then considered another case, Matter of Sweetser. In Matter of Sweetser, a British man decided to bathe his stepson before changing his diapers. He ran a bath of approximately 4-5 inches of water and left his stepson unattended in the bathtub while tending to his younger daughter in another room. When he returned he found that his stepson had drowned in the bathtub. The coroner ruled the respondent’s stepson’s death accidental. Mr. Sweetser, however, was charged with and convicted of criminally negligent child abuse, for which he was sentenced to a term of imprisonment of 4 years.
In light of the accidental death case (involuntary manslaughter) and DUI case, you might think the answer would be that it is a crime of violence. You’d be wrong. The BIA held:
Upon this record we cannot find that the respondent was convicted of a “crime of violence” as defined by 18 U.S.C. § 16(b). Analysis of the conviction record shows that the respondent was convicted of failing to exercise a reasonable standard of care in recognizing a substantial and unjustifiable risk resulting in his stepson’s death. The basis for the respondent’s criminal liability was his failure to recognize an unjustifiable risk by permitting his stepson to be left alone in a partially filled bathtub. That portion of § 18-6-401 which criminalizes the act of permitting “a child to be unreasonably placed in a situation which poses a threat” does not involve a substantial risk that the respondent will use physical force during the commission of the offense. No force or violence is necessary. Instead, only an act of omission is required for a conviction under this portion of the state criminal statute. Consequently, we find that by its nature the respondent’s offense is not a crime of violence, as required for conviction under 18 U.S.C. § 16(b).
Here, the BIA introduces a new test, going from a crime where violence could result to one where there would be force or violence in the commission of the offense. The BIA explained:
Criminal offenses that carry the substantial risk that force will be used also share the potential to result in harm. However, criminal offenses that have the potential for harm do not always share a substantial risk that force will be used. Without a causal link between the harm and the use of force, a criminal offense cannot be identified as a crime of violence under 18 U.S.C. § 16(b). Our decision in Matter of Magallanes, supra, established that driving under the influence involves a substantial risk that a driver will injure someone in an accident. The risk of injury in that case was directly related to the substantial risk that the driver, while operating his motor vehicle, would use physical force to cause the injury. Like our holding in this case, the focus in Magallanes was on the conduct required for a conviction, i.e. the risk of force, rather than the consequences or harm resulting from the crime. Therefore, despite the risk of “harm” language, Matter of Magallanes turned on the question whether there was a substantial risk of “physical force” being used against people or property.
Is that all straight in your head? Drinking and driving and hurting no one has the potential for the use of force to hurt someone, but physically picking up and putting the infant in water that you put into a tub is not using force – in the Physics sense – any interaction that, when unopposed, will change the motion of an object.
All was becoming a muddle, but at least now courts were not ignoring the words in 18 U.S.C. § 16(b), “an offense involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” There has to be some use of force based on the actual crime involved in the potential injury. This though, opened up more scrutiny of the application of 18 U.S.C. § 16(b).
These new developments were not all of the BIA’s own invention or discernment. The courts of appeal were reviewing DUI cases and some were finding that the BIA was wrong to find that DUI’s were crimes of violence under 18 U.S.C. § 16(b). As a result, in Matter of Ramos, in 2002, the BIA reversed its Matter of Magallanes decision. The BIA noted the poor reviews of Matter of Magallanes, writing, “… four circuit courts that have reviewed the statute, de novo, have agreed that the risk involved in driving under the influence is not the risk that the driver may “use” force against the person or property of another to carry out the crime and therefore driving under the influence does not amount to an offense covered by § 16(b),” citing to cases in the second , fifth, seventh, and ninth circuits.
Another criticism of the reasoning of Matter of Magallanes was based on the fact that the deaths in that case were accidents. Mr. Magallanes did not set out to hurt anyone, it was a mistake. The Board in Matter of Ramos wrote:
… the decisions of the United States Court of Appeals for the Third Circuit strongly suggest that it would find, at the very least, that a crime requiring only criminal negligence or no mens rea at all is not an offense that, by its nature, involves a substantial risk that physical force may be used in the course of committing the crime. See Francis v. Reno, 269 F.3d 162, 172-73 (3d Cir. 2001) (stating that vehicular homicide, which requires only proof of criminal negligence, is not an offense that, by its nature, involves a substantial risk that physical force may be used in its commission); United States v. Parson, 955 F.2d 858, 866 (3d Cir. 1992) (indicating that “use of physical force” refers to an intentional act, and that although a drunk driver may risk causing injury, in most cases he does not intend to “use” force to cause this harm). Therefore, the rulings of the Third Circuit suggest that it may be inclined to follow the Second, Fifth, Seventh, and Ninth Circuits in concluding that driving under the influence is not a crime of violence.
In Matter of Ramos, the BIA concluded, “The focus on action rather than inaction in these circuit courts’ driving under the influence decisions underscores that it is the conduct that may be used to perpetrate the offense, rather than the risk of injury or consequences flowing from the crime, that is crucial in determining the nature of the offense.”
In 2004, the Supreme Court stepped into the 18 U.S.C. § 16(b) mess in Leocal v. Ashcroft, trying to clarify what force by whom and when was important in 18 U.S.C. § 16(b) analysis. It specifically addressed DUI, the case that initially seemed easiest to define as a crime of violence. The Supreme Court held unanimously that DUI was not a crime of violence:
The definition of a “crime of violence” in 18 U.S.C. 16(b) as an “offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense” did not encompass all offenses that created a “substantial risk” that injury would result from a person’s conduct. The “substantial risk” in § 16(b) related to the use of force, not to the possible effect of a person’s conduct. Section 16(b) did not encompass all negligent misconduct, such as the negligent operation of a motor vehicle. Instead, § 16(b) covered offenses that naturally involved a person acting in disregard of the risk that physical force might be used against another in committing an offense. The reckless disregard in § 16(b) related not to the general conduct or to the possibility that harm would result from a person’s conduct, but to the risk that the use of physical force against another might be required in committing a crime.
It seemed the Supreme Court was saying that the crime of drunk driving does not contain the element of getting into an accident. To be guilty of driving drunk, all that the prosecutor needs to prove is that the defendant was caught driving and that the defendant was drunk. The defendant does not have to have hurt someone. He cannot even argue, like Denzel Washington in Flight, that he is a safer driver even after a couple of drinks than many drivers on the road. This would be as opposed to a crime where the actions the perpetrator takes are actual physical force. In Leocal, the Supreme Court also found, as the third circuit had, that when the force was applied accidentally, the crime could not be a crime of violence.
But how does one apply this statute if it means that putting a child in the bathtub is not using force and steering a 2000 pound heap of metal is not using force? Also, if negligent conduct is not a crime of violence, is leaving a child in a bathtub or driving drunk negligent activity, or is it more serious, like gross negligence or recklessness, which are often distinguishable in the law.
Consider the crime of recklessly discharging a firearm. The archetypical scenario is that a person decides to set up a target in his backyard and the backyard is adjacent to a playground. Would this be a crime of violence under 18 U.S.C. § 16(b)?
In 2005, the 9th Circuit issued Lara-Cazares v. Gonzales. Full disclosure, I represented Mr. Lara-Cazares at the 9th Circuit. As the Court put it,
He was convicted of a crime that required him to have been driving while under the influence of alcohol, and to have killed a person with gross negligence (but without malice aforethought) in so doing. There is no requirement that he intentionally used the vehicle to inflict injury. Under the Supreme Court’s reasoning in Leocal, Lara-Cazares simply cannot be regarded as having “used” physical force “against the person… of another.” 18 U.S.C. § 16. He did not actively employ force against another in a manner to constitute a crime of violence under § 16.
Gross negligence and drunken driving causing death are the categorical elements of the crime of which Lara-Cazares was convicted, and these elements do not change whether the crime is characterized as “DUI causing injury” or “gross vehicular manslaughter while intoxicated.” The death remains accidental. Interpreting § 16 to encompass accidental or negligent conduct would blur the distinction between the ‘violent’ crimes Congress sought to distinguish for heightened punishment and other crimes.
The Lara-Cazares court then specifically addressed the gross negligence aspect of the case. The popular wisdom at the time was that while being negligent might not make one culpable, certainly gross negligence or wantonness or recklessness would be a different matter. The court in Lara-Cazares was having none of that, writing, “Gross negligence is still negligence, however flagrant, and does not constitute the kind of active employment of force against another that Leocal requires for a crime of violence. Gross negligence and drunken driving causing death are the categorical elements of the crime of which Lara-Cazares was convicted, and these elements do not change whether the crime is characterized as “DUI causing injury” or “gross vehicular manslaughter while intoxicated.” The death remains accidental. Interpreting § 16 to encompass accidental or negligent conduct would blur the distinction between the ‘violent’ crimes Congress sought to distinguish for heightened punishment and other crimes.”
So now we add an “accidents, even super negligent or reckless accidents, don’t count” element to considering what a crime of violence is. It is obviously getting harder and harder to figure out what a 18 U.S.C. § 16(b) case is.
I remember the early 2000’s as a time this issue came up all the time. An immigration judge found that my client was an aggravated felon for committing a crime of violence for stealing car stereos, whatever those were. He contended that if he got caught breaking into the car by the owner, a fight would ensue resulting in violence. Similarly, burglarizing someone’s home could cause violence if someone was home at the time or walked in while the burglar was in the house. You don’t have to like thieves and burglars to wonder if these crimes were crimes of violence after applying all the caveats, as opposed to say, mugging someone or car jacking someone.
Finally, with cases all over the place, the Supreme Court took up the issue in a criminal sentencing case, Johnson v. United States, in 2015. In that case the defendant was given an enhanced sentence because he had prior conviction for what was considered a crime of violence, unlawful possession of a short-barreled shotgun. The Supreme Court decided that the 18 U.S.C. § 16(b)-like sentencing statute was too vague to be Constitutional. The court wrote:
Two features of the residual clause conspire to make it unconstitutionally vague. By tying the judicial assessment of risk to a judicially imagined “ordinary case” of a crime rather than to real-world facts or statutory elements, the clause leaves grave uncertainty about how to estimate the risk posed by a crime…. At the same time, the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony. Taken together, these uncertainties produce more unpredictability and arbitrariness than the Due Process Clause tolerates. This Court’s repeated failure to craft a principled standard out of the residual clause and the lower courts’ persistent inability to apply the clause in a consistent way confirm its hopeless indeterminacy.
From there it was just a matter of time for a case like Sessions v. Dimaya to be heard, applying the holding in Johnson. In Dimaya, the Supreme Court held that Mr. Dimaya committed crimes of violence, two first degree burglaries, defined in the case of Mr. Dimaya as, “Every person who enters any inhabited dwelling house with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, ‘inhabited’ means currently being used for dwelling purposes, whether occupied or not.”
After all the decisions over the years chiseling away at the certainties of the 1990’s about 18 U.S.C. § 16(b), it is actually quite amazing that immigration judges and the BIA were still finding that such convictions were crimes of violence, particularly burglary. After all, there was no element of the use of violent force in the burglary. Encountering an occupant of the home was not an element of the crime and nor was clobbering the occupant if he was indeed encountered. Further, under California criminal law, first degree burglary could be found if a salesman entered your home with your permission to sell you an enrollment in Trump University based on untrue promises, like, for example, promising an education. What is the degree of risk of violence in that scenario and what, pray tell, is the normal scenario?
The Supreme Court invalidated18 U.S.C. § 16(b) as unconstitutionally vague because of all these problems with the statute. The Supreme Court, it should be crystal clear, did not say that violent felons are exempt from being deported. It said that one half of the definition of a crime of violence, a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense, is too hard to decipher.
It is just too hard to figure out if any crime fits the bill when it has to be committed deliberately, not negligently or recklessly; must involve use of force in commission of the crime and not as the unintended consequence; and must have a predictable significant potential for violence. If DUI, baby drowning, involuntary manslaughter, possessing a firearm, and burglary do not fit the bill, it might be impossible to find a crime that squarely does.
One should not feel too bad for the government. They still have plenty of tools to deport people. Violent criminals are still deportable in any number of ways. They just cannot be deported under 16(b) based on subjective determinations of potential danger or by accidental conduct. Far worse things are going on that challenge our conceptions of law and order than Dimaya v. Sessions. We are under greater threat from Sessions than from Dimaya. Posted May 6, 2018.